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Drilon wrote Morales for the second time to seek her opinion on the issue, this time attaching the letter from Guingona.

“In my September 23, 2013 letter to you, [I wrote] that] under the therein stated considerations, ‘it would not be advisable at this time, for Mrs Napoles to testify on what [she] know[s] about the alleged ‘scam,’’ I am not inclined to modify said comment,” Morales said.

Morales’ letter was dated September 27, Friday, but was released to the media only on Monday, September 30. The Senate is on a session break and will resume work on October 14.

Guingona had criticized Drilon’s decision to seek the Ombudsman’s advice and abide by it, saying the Senate is not bound by her opinion.

Last Thursday, September 26, Guingona announced at the start of the blue ribbon hearing on the pork barrel scam that he wrote Drilon to reconsider his decision and was giving him 3 days to respond.

Instead of immediately deciding on the issue, the Senate President again wrote Morales to ask her to respond to Guingona’s letter.

In her response, the Ombudsman said she was “cognizant” of the jurisprudence that Guingona cited in his letter. Morales said she considered the jurisprudence in arriving at her initial comment.

In his letter to Drilon, Guingona cited several Supreme Court cases where he said the High Court upheld the Senate’s constitutional power to conduct investigations in aid of legislation:

Romero et al versus Chavez et al

Senate Blue Ribbon Committee versus Majaducon and Flaviano

Sabio versus Gordon et al

The Ombudsman is handling a plunder complaint against 38 individuals over the pork barrel scam. Senators Bong Revilla, Juan Ponce Enrile and Jinggoy Estrada are among the lawmakers accused of channeling their Priority Development Assistance Fund (PDAF) to Napoles’ fake non-governmental organizations in exchange for kickbacks amounting to 50% of the project.

Retired Supreme Court Justice Vicente Mendoza, a noted constitutionalist, told Rappler "nothing prevents" the Senate from calling Napoles to its probe. But as a matter of "inter-departmental courtesy," the Senate should notify the court to avoid conflicts in the schedule of hearings.

Written interrogatory instead?

Last week, Drilon and Guingona first clashed on the issue after the Senate President said he will defer to the Ombudsman’s advice.

The Ombudsman advised against having Napoles testify, invoking the confidentiality rule of her office. Morales said last week that there are other cases that have not yet been filed with her office, and that publicity on Napoles’ testimony may “prejudice the safety of the witnesses or the disposition of the case.”

In heeding the advice, Drilon said he is proceeding with “prudence and caution” to allow the Ombudsman to complete its initial fact-finding investigation on the case.

“What is at stake here is the ability of the Office of the Ombudsman to prosecute the PDAF misuse case against Napoles with dispatch and without delay. This is the principal goal of our justice system,” Drilon said.

In his letter to Drilon, Guingona said, “Government officials and even the whistleblowers have been summoned pursuant to this investigation. No logical and legal reason exists why caution, timing and prudence are now being used to prevent Janet Lim Napoles from attending the hearings of the blue ribbon committee.”

“From the time I sat as chairperson, a total of 22 subpoenas have been signed by the previous and current Senate President. There is no reason why Janet Lim Napoles’ subpoena must be treated differently,” Guingona said.

Escudero initially said the Senate may vote on the issue and override Drilon’s decision.

Yet in an interview with radio DZBB on Sunday, September 28, the senator said this is no longer an option because the Senate is now on recess.

Instead, Escudero said the Senate may look into asking written comments from Napoles.

“My position has not changed. She should be summoned. But if not, if what [Napoles lawyer Lorna] Kapunan said is right that there is a written interrogatory to perpetuate Napoles’ testimony instead of having her appear, maybe the Senate Blue Ribbon Committee can subpoena that because that is equivalent to a testimony for the purposes of the committee," Escudero said.

As for Drilon, he said he will go with whatever the majority decides on.

"I think they understand the request of the Ombudsman not to ask Napoles to speak now," he said in another DZBB interview.

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Welcome to Rappler, a social news network where stories inspire community engagement and digitally fuelled actions for social change. Rappler comes from the root words "rap" (to discuss) + "ripple" (to make waves).